Citation Nr: 9916381
Decision Date: 06/15/99 Archive Date: 06/21/99
DOCKET NO. 97-23 021 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Entitlement to an increased evaluation for right knee
retropatellar pain syndrome, currently evaluated as 10
percent disabling.
2. Entitlement to an increased evaluation for sinusitis with
allergic rhinitis and headaches, currently evaluated as 10
percent disabling.
3. Entitlement to service connection for hair loss, to
include as due to an undiagnosed illness.
4. Entitlement to service connection for nausea, to include
as due to an undiagnosed illness.
5. Entitlement to service connection for irritable bowel
syndrome, to include as due to an undiagnosed illness.
6. Entitlement to service connection for insomnia, to
include as due to an undiagnosed illness.
7. Entitlement to service connection for an anxiety
disorder, to include as due to an undiagnosed illness.
8. Entitlement to service connection for fatigue, to include
as due to an undiagnosed illness.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Michael A. Holincheck, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1990 to
August 1992, with service in the Southwest Asia Theater of
Operations from January 1992 to April 1992.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions by the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Louis,
Missouri, which denied the benefits sought on appeal. The
veteran was originally denied service connection for his
right knee disability but was granted service connection and
assigned a 10 percent disability evaluation in August 1997.
The veteran was also originally denied service connection for
headaches but was granted service connection for sinusitis
with allergic rhinitis and headaches and assigned a
noncompensable evaluation in August 1997. The disability
evaluation for sinusitis was increased to 10 percent in
October 1997.
As part of his July 1997 substantive appeal, the veteran
requested to appear at a hearing before the Travel Board. In
a statement dated in October 1997, the veteran's local
representative noted that the veteran wanted to withdraw his
request for a hearing. In March 1998, the veteran's national
representative disputed the propriety of allowing the
veteran's local representative to withdraw the veteran's
request for a hearing. The veteran was contacted by the
Board, by way of a letter dated in August 1998, and asked to
clarify his wishes in regard to a personal hearing. The
veteran submitted a statement, dated in October 1998, wherein
he stated that he did not want to appear before a local
hearing officer, or a member of the Travel Board.
Accordingly, the veteran's request for a hearing is withdrawn
and the case will be decided based upon the evidence of
record. 38 C.F.R. § 20.704(e) (1998).
Finally, the issue of entitlement to an increased rating for
sinusitis with headaches will be discussed in the REMAND
portion of the decision.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appeal has been obtained by the RO.
2. The veteran served in the Southwest Asia Theater of
Operations from January 1992 to April 1992.
3. There is no competent medical evidence of any disabling
illness related to hair loss, nausea, irritable bowel
syndrome, anxiety disorder, and fatigue.
4. There is no evidence of record that provides a nexus
between the veteran's diagnosis of primary insomnia and any
incident of service.
5. The veteran's right knee disorder is manifested by a full
range of motion, no laxity or instability but with swelling,
crepitus, and pain under the patella.
CONCLUSIONS OF LAW
1. The veteran's claim for service connection for hair loss,
nausea, irritable bowel syndrome, anxiety disorder, and
fatigue, to include as due to an undiagnosed illness, and
primary insomnia, is not well-grounded. 38 U.S.C.A. § 5107
(West 1991); 38 C.F.R. § 3.317 (1998).
2. The criteria for an evaluation in excess of 10 percent for
right knee retropatellar pain syndrome have not met. 38
U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1-
4.14, 4.31, 4.40, 4.45, 4.71a, Diagnostic Codes 5256, 5257,
5258, 5260, 5261, 5262 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran served on active duty from September 1990 to
August 1992 with service in the Southwest Asia Theater of
Operations from January 1992 to April 1992. The Board notes
that the veteran's period of service in the Gulf area was
approximately one year after the cessation of main combat
activities.
The veteran's service medical records (SMRs) reflect several
instances of treatment for cold-like symptoms such as stuffy
nose, cough, congestion and sinusitis. He was also treated
for right knee pain in June and July 1992. The SMRs are
negative for any indication of treatment for complaints
associated with hair loss, nausea, irritable bowel syndrome,
insomnia, anxiety disorder or fatigue.
The veteran originally sought to establish service connection
for the conditions listed on appeal in October 1995. He was
afforded a VA general medical examination in April 1996. The
veteran reported that he was employed full-time as a fork-
lift operator and had a good attendance record. The veteran
alleged that, soon after his return from overseas, he
developed allergies, nasal stuffiness, constant congestion,
runny nose, and difficulty breathing. He also said that he
was given medication that made him sleepy. He complained of
right knee pain with occasional swelling. He said that he
had noticed a gradual loss of hair and gauged it by looking
at a picture of himself before he was in Desert Storm. He
was not aware of a family history of baldness. In regard to
his gastrointestinal complaints, he said that certain foods
would just pass through him. He said that, in the beginning,
he had some nausea. He then said that he would sometimes
have loose stools, two to three times a week. In response to
a question of what type of foods caused him problems, the
veteran said Taco Bell. He had not lost any weight, and had
actually gained weight. He did have some gas. The examiner
said that she did not know how to explain the veteran's
stomach complaints because his abdominal examination was
completely benign. The veteran currently worked a 5:30 p.m.
to 4:00 a.m. shift. He would sometimes sleep for 8 hours but
still be fatigued for the first 45 minutes upon awakening.
The examiner remarked that the veteran did not look tired or
lacking sleep. There was evidence of some allergy.
Physical examination noted the veteran to be heavy, and in a
good state of nutrition. He had erect posture and normal
gait. The nose, sinuses, mouth and throat were not swollen
and there was good passage of air on both nostrils but the
veteran kept on sniffing. Chest sounds were very clear, no
complaints of chronic cough or shortness of breath. The
shortness of breath claimed by the veteran pertained to his
inability to breathe through his nose. The abdomen was soft,
with no tenderness to palpation, no organomegaly, with active
bowel sounds. The veteran had a clicking feeling on passive
flexion and extension of both knees. There was some
tenderness on movement of the patella medially on the right.
There was no evidence of instability. The examiner reported
"123 flexion" on the right. The examiner's pertinent
diagnoses were: (1) allergic rhinitis; (2) male pattern
baldness; (3) patellofemoral syndrome, asymptomatic on the
right; and (4) subjective complaint of some food that did not
agree with his gastrointestinal tract that made him go to the
bathroom like it passed through him. A chest x-ray was
interpreted as normal with no evidence of infiltration,
consolidation, atelectasis or pleural effusion. Bilateral x-
rays of the knees were interpreted as negative for bone or
joint pathology.
The veteran was also afforded a VA neuropsychiatric
examination in April 1996. He complained of twice daily
headaches that occurred over the entire head and behind the
eyes with no hemicrania. He was allergic to mold and dust.
His headaches were all sinus headaches. Physical examination
found the cranial nerves intact. The deep tendon reflexes
were 2+, and posterior columns were intact. The cerebellar
system was normal. Motor power was 4 out of 4 in all flexors
and extensors. The mental status examination revealed no
deficits of orientation, memory, comprehension, judgment,
intelligence, or fund of knowledge. There was no psychotic
thought content. The examiner's diagnosis was that there was
no evidence of a primary neurological or psychiatric disease.
The veteran submitted a notice of disagreement in April 1997.
He stated that he was told during his Desert Storm Protocol
examination that he had the lungs of a 20-year smoker. He
said he was also told that the laboratory results for his
liver tests looked similar to results for someone that had
been drinking for 30 years. He also said that his hair loss
was accelerated after his return from Desert Storm. He
further stated that he had not any treatment for his right
knee condition since he had been discharged from service.
In June 1997, the RO contacted the veteran and informed the
veteran of a number of sources of evidence that he could
submit in support of his claim for his Persian Gulf War
service.
The veteran submitted his substantive appeal in July 1997.
He asserted that, while he was on active duty, surgery was
being considered for his right knee problem. He had not
obtained medical care for it after service because he could
not afford it and he was unaware that he was entitled to
veteran's benefits. He also asserted that his health was
noticeably changed after his service in the Gulf. He said
that he had researched the issue of baldness and found no
evidence of hair loss in his family. He had sinus infections
before he served in the Gulf but since his return, the
infections were more frequent and took more time to clear up.
He repeated his assertion that he was told that his lungs
were like those of a smoker and that his blood tests showed
that his liver enzymes were approximately double the normal
level.
The veteran was afforded a VA examination in June 1997. The
examiner asked the veteran about his past complaints
concerning his lungs, liver, alimentary appendages, and
insomnia. The veteran denied any problems with a lung
condition, gastrointestinal or diarrhea or insomnia. He said
that his main problem was his right knee. The veteran was
employed as a tow truck driver and stated that his right knee
would swell up as the day went on. He felt pain down the
lower part of his right knee and it hurt to go upstairs,
carry any type of weight, or walk on uneven ground. He said
that there were some days were it was hard to move,
especially when he would put weight down to push off. Others
days were not as bad. The veteran could get up, move around,
and do his job. The examiner noted that the veteran's x-rays
from 1996 showed that there was nothing wrong with the knee.
The veteran's chest x-ray was also noted as clear. The
examiner reviewed past laboratory values for the veteran and
said that all of them, with the exception of alanine
transaminase (ALT) or serum glutamic pyruvic transaminase
(SGPT), were within normal limits. He was noted to be taking
terfenadine and using a Beclomethasone nasal inhaler for his
allergic rhinitis.
Physical examination of the veteran's right knee found a
range of motion that was described by the examiner as a full
range. He said that there was greater than 130 degrees of
flexion. There was crepitus on range of motion along with
effusion. There was no instability or laxity in the knee.
The veteran did have some pain under his patella. The
examiner said that this was a soft tissue disorder secondary
to overuse. The examiner's diagnosis was right knee
retropatellar pain syndrome secondary to overuse with normal
range of motion and mild loss of strength.
The veteran was afforded a VA psychology examination in July
1997. He was noted to work 50-60 hours per week. He had
recently gotten married. The examiner said that the veteran
had one subjective complaint and that was that he had
insomnia. The veteran said that three times a month he would
not be able to sleep for up to three hours. He did not know
why he could not sleep, he could not describe what he did at
those times, and could not explain how he would get to sleep.
The examiner reported the Millon Clinical Multiaxial
Inventory (MCMI) indicated a dependent personality disorder
likely as well as traits from other domains, especially
histrionic and aggressive features. There was no major
difficulty with anxiety and dysphoria at that time. The
examiner's diagnosis was primary insomnia, dependent and
histrionic traits, monitor for aggressive features.
The veteran submitted a statement regarding his sinus
condition in September 1997. He also provided copies of
private treatment records from M. Fedak, M.D., for the period
from April 1994 to January 1997. The veteran noted that he
was taking Seldane, twice a day, for management of his
symptoms. He also said that sometimes this was not enough to
alleviate his symptoms. He described an event where he had
to return home early because of the severity of his symptoms.
He also indicated that he could no longer participate in
certain sports as he used to because of his symptoms.
The records from Dr. Fedak show that the veteran was treated
on several occasions in 1994, 1995, and 1996 for cold-like
symptoms, nasal congestion and an occasional headache. There
was one entry, dated in February 1995, that noted the veteran
to have a complaint of vomiting.
Service Connection for Hair Loss, Nausea, Irritable Bowel
Syndrome,
Insomnia, Anxiety Disorder, and Fatigue
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by wartime
service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §
3.303(a) (1998). If a condition noted during service is not
shown to be chronic, then generally a showing of continuity
of symptoms after service is required for service connection.
38 C.F.R. § 3.303(b) (1998). Service connection may also be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d) (1998).
38 C.F.R. § 3.317(a) (1998) provides that the VA shall pay
compensation to a Persian Gulf War veteran who "exhibits
objective indications of chronic disability" (manifested by
certain signs or symptoms), provided that the disability was
manifest to a degree of 10 percent or more prior to December
21, 2001, and that it cannot, by history, physical
examination and laboratory tests, be attributed to any known
clinical diagnosis. Id. (emphasis added); see also 38
U.S.C.A. § 1117 (West 1991 & Supp. 1998). "Objective
indications" include both objective evidence perceptible to
an examining physician and other non-medical indicators that
are capable of independent verification. 38 C.F.R. §
3.317(a)(2). In this regard, VA has stated that non-medical
indicators of an illness may include evidence of time lost
from work, evidence the veteran has sought medical treatment
for his symptoms, and "[l]ay statements from individuals who
establish that they are able from personal experience to make
their observations or statements." See Compensation for
Certain Undiagnosed Illnesses, 60 Fed. Reg. 6660, 6663
(1995).
The initial question which must be answered in this case is
whether the veteran has presented well-grounded claims for
service connection for hair loss, nausea, irritable bowel
syndrome, insomnia, anxiety disorder, and fatigue, to include
as due to undiagnosed illnesses. In this regard, the veteran
has "the burden of submitting evidence sufficient to justify
a belief by a fair and impartial individual that the claim is
well grounded;" that is, the claim must be plausible and
capable of substantiation. See 38 U.S.C.A. § 5107(a) (West
1991); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990).
For a claim to be well-grounded, there must be a medical
diagnosis of a current disability; medical or in certain
circumstances, lay evidence of in service occurrence or
aggravation of a disease or injury; and, medical evidence of
a nexus between an in service disease or injury and the
current disability. Where the determinative issue involves
medical causation, competent medical evidence to the effect
that the claim is plausible is required. Epps. v. Brown, 126
F.3d 1464, 1468 (Fed. Cir. 1997) (quoting Epps v. Brown, 9
Vet. App. 341, 343-344 (1996) (citations and quotations
omitted). A well-grounded claim must be supported by
evidence and not merely allegations. Tirpak v Derwinski, 2
Vet. App. 609 (1992).
The veteran's SMRs are negative for treatment for any of the
listed conditions claimed for service connection. There are
no records of post-service treatment. The VA medical
examination of April 1996 found that the veteran suffered
from male pattern baldness, with no clinical evidence of
chronic fatigue syndrome, and a subjective complaint of some
food that did not agree with the veteran, i.e. no finding of
nausea, or irritable bowel syndrome. The April 1996
neuropsychiatric examination found no evidence of a
neurological or psychiatric disease. At his June 1997 VA
orthopedic examination, the veteran denied complaints
regarding a gastrointestinal disorder, and insomnia. The
July 1997 psychiatric examination diagnosed the veteran with
primary insomnia with a dependent personality disorder. The
private records from Dr. Fedak did not show treatment for any
of the claimed conditions, except for one entry in February
1995 where the veteran called in with a complaint of
vomiting.
Congenital or developmental defects are not diseases or
injuries within the meaning of applicable legislation. 38
C.F.R. § 3.303(c) (1998). Male pattern baldness is a
constitutional or developmental defect and does not warrant
separate service connection. Moreover, there is no evidence
to show that the veteran suffers from any chronic problem
associated with nausea, irritable bowel syndrome, anxiety
disorder, or fatigue. Between the medical examiners'
findings already listed and the veteran's later statements of
no problems involving some of those conditions, there is no
basis to establish service connection either on a direct
basis or under 38 C.F.R. § 3.317.
In regard to the diagnosis of primary insomnia, the fact that
there is a diagnosis precludes consideration under 38 C.F.R.
§ 3.317. However, there is no evidence that the veteran
suffered from insomnia in service, there is no evidence of
post-service treatment for the condition and the VA examiner
did not provide any nexus between the diagnosis and the
veteran's period of active duty.
The Board notes that the veteran is capable of presenting lay
evidence regarding the symptoms of his claimed conditions.
However, where, as here, a medical opinion is required to
diagnose the condition and to provide a nexus to service,
only a qualified individual can provide that evidence. As a
layperson, the veteran is not qualified to offer medical
opinions. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
It is the province of trained heath care professionals to
enter conclusions which require medical opinions as to
causation. Jones v. Brown, 7 Vet.App. 134, 137 (1994).
Therefore, statements provided by the veteran in this regard
do not constitute "competent medical evidence" for purposes
of determining whether the claim is well grounded. See
LeShore v. Brown, 8 Vet. App. 406, 409 (1995).
In light of the evidence of record, the Board finds that the
claim for service connection for the above conditions is not
well-grounded. The veteran has either presented no evidence
of a current disability (nausea, irritable bowel syndrome,
anxiety disorder, fatigue) or the claimed disability is a
diagnosed condition that is unrelated to service or is not a
ratable disability (insomnia, male pattern baldness).
Accordingly, there is no basis for establishing service
connection for any of the listed conditions either on a
direct basis or as due to an undiagnosed illness. See
38 C.F.R. §§ 3.303, 3.317; See also Epps, 126 F.3d at 1468.
The Board is unaware of the existence of any evidence, which,
if obtained, would render the claim well grounded. See
generally McKnight v. Gober, 131 F.3d 1483, 1485 (Fed. Cir.
1997); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1996).
Increased Rating for Right Knee
As a preliminary matter, the Board finds that the veteran's
claim for an evaluation in excess of 10 percent for his right
knee disability, is "well grounded" within the meaning of 38
U.S.C.A. § 5107(a). A claim that a service-connected
condition has become more severe is well-grounded where the
claimant asserts that a higher rating is justified due to an
increase in severity. See Caffrey v. Brown, 6 Vet. App. 377,
381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-632
(1992). The Board is also satisfied that all relevant facts
have been properly and sufficiently developed. Accordingly,
no further development is required to comply with the duty to
assist the veteran in establishing his claim. See 38
U.S.C.A. § 5107(a).
Under the laws administered by VA, disability ratings are
determined by applying the criteria set forth in VA's
Schedule for Rating Disabilities, which is based on the
average impairment of earning capacity. Individual
disabilities are assigned separate diagnostic codes.
38 U.S.C.A. § 1155( West 1991); 38 C.F.R. § 4.1 (1998).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, it is the present level of disability that is of
primary concern. Francisco v. Brown, 7 Vet. App. 55, 58
(1994). Also, where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7 (1998).
In this case, the veteran has been assigned a 10 percent
evaluation for his right knee under Diagnostic Code 5257 for
other impairment of the knee, such as that manifested by
recurrent subluxation or lateral instability. 38 C.F.R. §
4.71a (1998). Pursuant to that diagnostic code, a 10 percent
evaluation requires a slight impairment. A 20 percent
evaluation is warranted where there is moderate impairment.
As the evidence noted above indicates, objectively, the
disability of the right knee is manifested by effusion and
crepitus. No other functional loss has objectively been
shown on examination, including with respect to range of
motion. In this regard, the Board notes that in April 1996,
the examiner reported the veteran's range of motion as
"123", and, in June 1997, he was reported to have flexion
greater than 130 degrees. As standard range of motion of the
knee is from 0 to 140 degrees, see 38 C.F.R. § 4.71, Plate II
(1998), the veteran's range of motion of the knees is shown
to be essentially full (as noted by the June 1997 VA
examiner). Moreover, the veteran was not found to have any
instability or laxity in his knee on either examination. X-
rays of the right knee from April 1996 were negative for any
evidence of bone or joint pathology.
In applying the rating criteria to the evidence of record,
the Board concludes that the veteran's right knee
symptomatology is productive of no more than a slight
impairment. There is essentially a full range of motion, no
instability or laxity, and no x-ray evidence of any joint
problems. The objective symptoms are some effusion and
crepitus with subjective complaints of pain under the
patella. The evidence does not support a finding of a
moderate disability under Diagnostic Code 5257.
The Board notes that since the veteran's disability is rated
under Diagnostic Code 5257, the provisions of 38 C.F.R. §§
4.40, 4.45 (1998), and the analysis required under DeLuca v.
Brown, 8 Vet. App. 202, 206-7 (1995), are not for application
in this case. See Johnson v. Brown, 9 Vet. App. 7, 11 (1997)
(Diagnostic Code 5257 not predicated on loss of range of
motion, 38 C.F.R. §§ 4. 40, 4.45, with respect to pain, do
not apply).
Since no increase may be granted under Diagnostic Code 5257,
the Board also has considered whether more than a 10 percent
evaluation for the right knee is assignable under any other
potentially applicable diagnostic code. The Board notes that
the diagnostic codes pursuant to which limitation of motion
of the leg/knee is measured (5260, for flexion, and 5261, for
extension) appear inapplicable, since, as noted above, the
range of motion of his knee has been shown to be essentially
normal. However, even if functional loss due to pain were
assessed in terms of limited motion, the Board finds that
evidence fails to demonstrate evidence of such disabling pain
so as to effectively result in flexion limited to 30 degrees
or less, or extension limited 15 degrees or more, the
criteria for an evaluation in excess of 10 percent under
Diagnostic Codes 5260, and 5261, respectively. The Board
further notes that inasmuch as the record reveals no evidence
of ankylosis or impairment of the tibula or fibula, an
increased evaluation under Diagnostic Codes 5256 and 5262,
respectively, are not for application in this case. Finally,
there is no evidence of dislocated semilunar cartilage to
warrant the assignment of a 20 percent rating under
Diagnostic Code 5258. 38 C.F.R. § 4.71a.
In view of the foregoing, the Board concludes that no more
than the currently assigned 10 percent evaluation is
warranted for the right knee, and that the claim for increase
must, therefore, be denied. In reaching this decision, the
Board has considered the nature of the disability, including
the history of the veteran's complaints of pain and swelling
with use during the day, and the effect the disability has on
the earning capacity of the veteran. However, for the
reasons previously stated, the Board finds that the veteran's
right knee disability simply is not shown to result in
impairment to a degree to warrant a higher evaluation than
that assigned by the RO under the Schedule for Rating
Disabilities. The Board has considered the applicability of
the reasonable doubt doctrine under 38 U.S.C.A. § 5107(b)
(1991); however, as the preponderance of the evidence is
against an increased evaluation, that doctrine is not for
application in the instant case. See Gilbert v. Derwinski, 1
Vet.App. 49, 55-56 (1991).
Finally, the Board notes that the above decision is based on
the pertinent provisions of the VA's Schedule for Rating
Disabilities. Additionally, however, the Board notes that
there is no indication that the schedular criteria are
inadequate to evaluate the veteran's disability. In this
regard, the Board notes that there has been no showing that
the right knee disability has caused marked interference with
employment (i.e., beyond that contemplated in the assigned
evaluation), or necessitated frequent periods of
hospitalization, or that the disability otherwise has
rendered impracticable the application of the regular
schedular standards. As such, the Board is not required to
remand either matter to the RO for the procedural actions
outlined in 38 C.F.R. § 3.321(b)(1) (1998). See Bagwell v.
Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9
Vet.App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218,
227 (1995).
ORDER
Service connection for hair loss, nausea, irritable bowel
syndrome, insomnia, anxiety disorder, and fatigue, to include
as due to an undiagnosed illness, is denied.
A rating in excess of 10 percent for right knee retropatellar
pain syndrome is denied.
REMAND
The veteran originally sought service connection for
headaches when he filed his claim in October 1995. In a
rating decision, dated in August 1997, the veteran was
granted service connection for sinusitis, with allergic
rhinitis and headaches, with an effective date in October
1995. Initially a noncompensable rating was assigned but
this was increased to 10 percent in October 1997.
The Board notes that the regulations used to evaluate claims
involving sinusitis were amended, effective October 7, 1996.
See 61 Fed. Reg. 46,720, 46,728 (1996). Where a law or
regulation changes after a claim has been filed or reopened
but before the administrative or judicial appeal process has
been concluded, the version most favorable to an appellant
applies. See Karnas v. Derwinski, 1 Vet. App. 308, 313
(1991). In this case, the RO applied only the amended
criteria in evaluating the veteran's level of disability.
The prior regulations were not addressed. Inasmuch as the
veteran's claim was filed in October 1995, and the effective
date for service connection also dates back to October 1995,
consideration must be given for the level of disability that
may have existed under the prior regulations.
The Board notes that the veteran was granted service
connection for sinusitis based upon the results of the VA
examinations in 1996 and 1997 and evidence contained in his
SMRs. However, neither of the VA examinations were to
evaluate the veteran's sinus disability. The issue of the
veteran's sinus disability was addressed only on a peripheral
basis. Further the veteran submitted additional evidence
from a private physician which showed periodic treatment for
the veteran's sinus disability up to January 1997. In light
of the fact that the number of incapacitating and non-
incapacitating episodes of sinusitis per year is a
significant determining factor in evaluating this particular
disability, the Board finds that additional evidentiary
development is required for a proper evaluation of the
veteran's service-connected sinusitis with allergic rhinitis
and headaches.
Therefore, in order to give the veteran every consideration
with respect to the present appeal, it is the opinion of the
Board that further development in this case is warranted.
Accordingly, the case is REMANDED for the following action:
1. The RO should contact the veteran and
request that he provide the names,
addresses, and approximate dates of
treatment for all VA health care
providers who have treated him for his
sinus condition since January 1997.
After obtaining the necessary
authorizations, the RO should then
request any and all medical records not
currently of record. Any information
obtained must be associated with the
claims file.
2. The veteran should be afforded a VA
medical examination to determine the
nature and severity of his sinusitis with
allergic rhinitis and headaches. It is
requested that the examiner include the
number, if any, of incapacitating and
non-incapacitating episodes of sinusitis
experienced by the veteran per year. All
appropriate tests and studies should be
accomplished at this time, to include
sinus x-rays if deemed required by the
examiner. The veteran's claim file
should be made available to the examiner
for review.
3. The RO should evaluate the veteran's
sinusitis on the basis of all the
evidence of record and in accordance with
the regulatory changes in 38 C.F.R.
§§ 4.97 [61 Fed Reg. 46,720, 46, 728
(1996)], and Karnas. If the benefit
sought is not granted, the veteran and
his representative should be furnished a
supplemental statement of the case, and
be afforded the applicable time to
respond.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The purpose of this REMAND is
to obtain additional development, and the Board does not
intimate any opinion as to the merits of the issue on REMAND,
either favorable or unfavorable, at this time. No action is
required of the veteran until he is notified.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals